5:23-cv-04965
N.D. Cal.Aug 13, 2025Background
- Plaintiff Panchenko sued Comenity Capital Bank, alleging improper credit reporting and investigation under the FCRA, asserting he was a victim of identity theft.
- Comenity’s expert (Ulzheimer) opined that its credit investigations met or exceeded industry standards and that there was no evidence linking plaintiff’s alleged damages to Comenity’s reporting.
- Plaintiff disclosed Douglas Hollon as a rebuttal expert, whose report both challenged Comenity’s investigation as inadequate and asserted Panchenko was a victim of identity theft.
- Comenity moved to exclude Hollon’s testimony, arguing untimeliness, lack of qualifications, improper legal conclusions, and insufficient factual basis.
- The court analyzed the admissibility of Hollon’s opinions with respect to rebuttal scope, qualifications, legal conclusions, and methodology.
- The court partially granted Comenity’s motion, excluding Hollon’s identity theft opinion but allowing his critique of Comenity’s investigation as rebuttal testimony.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of Hollon’s identity theft opinion | Hollon’s opinions were properly disclosed as rebuttal | Identity theft opinion is untimely and not true rebuttal | Excluded as untimely; does not rebut defendant’s expert |
| Qualifications of Hollon as expert | Hollon’s 19 years’ experience in industry qualifies him | Hollon not qualified as hasn’t worked for data furnisher | Qualified to testify on investigation practices/standards |
| Opinion as improper legal conclusion | Testimony does not reach ultimate legal conclusion | Opinions on FCRA reasonableness and identity theft are legal conclusions | Excluded only use of term “reasonable” for legal standard and identity theft opinion |
| Sufficiency of facts/data | Hollon’s review aligns with industry methodology | Did not perform investigation plaintiff claims necessary | Flaws go to weight, not admissibility—testimony allowed |
Key Cases Cited
- Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101 (9th Cir. 2001) (burden on party to show late expert disclosure is substantially justified or harmless)
- Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998 (9th Cir. 2004) (expert qualification requirements addressed broadly)
- Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999) (court’s gatekeeping responsibility for expert testimony)
- Mukhtar v. Cal. State Univ., Hayward, 299 F.3d 1053 (9th Cir. 2002) (expert cannot offer opinion as to legal conclusion)
- Primiano v. Cook, 598 F.3d 558 (9th Cir. 2010) (focus for expert admissibility is reliability of methodology)